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Supreme Court, Appellate Division, First Department, New York.

TULLETT AND TOKYO FOREX, INC., Plaintiff-Appellant-Respondent, v. Mark SANDOMENO, Defendant-Respondent-Appellant.

Decided: February 25, 1999

ROSENBERGER, J.P., ELLERIN, WILLIAMS and ANDRIAS, JJ. Roy Karlin, for Plaintiff-Appellant-Respondent. R. Scott Garley, for Defendant-Respondent-Appellant.

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered September 3, 1998, which denied the parties' respective motions for summary judgment, unanimously affirmed, without costs.

 An issue of fact exists as to whether the parties' 1996 remuneration agreement was a novation discharging defendant employee's 1994 note to plaintiff employer or merely a modification of their 1994 remuneration agreement.   This issue is raised by ambiguity in the 1996 agreement in this regard and conflicting extrinsic evidence of the parties' intent (see, Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 293, 344 N.Y.S.2d 925, 298 N.E.2d 96).   Defendant's parol evidence of oral agreements allegedly made prior to the note and 1994 remuneration agreement consistent with his claim that the note was forgiven was properly rejected by the IAS court as inconsistent with the terms of the unambiguous note (see, Braten v. Bankers Trust Co., 60 N.Y.2d 155, 162, 468 N.Y.S.2d 861, 456 N.E.2d 802).   Concerning defendant's counterclaim for unpaid prorated salary and bonus under either the 1994 or 1996 remuneration agreement, an issue of fact exists as to whether the parties intended such prorating in the event of defendant's resignation.


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